Search

On November 6th, the Nova Scotia Court of Appeal held that the RCMP did not conduct an unreasonable search by reviewing a WestJet passenger manifest without a warrant and without making a formal request.

The context and the background

The issue of law enforcement’s access to personal information held by business organizations has arisen in a number of recent criminal cases, and it is becoming common for courts to judge the reasonableness of a police search in light of standards set by PIPEDA. PIPEDA restricts regulated organizations from disclosing personal information without consent, but includes the following key exemption:

7(3) For the purposes of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization may disclose personal information without the knowledge and consent of the individual only if the disclosure is…

(c.1) made to a government institution or part of a government institution that has made a request for the information, identified its lawful authority to obtain the information and indicated that

(i) it suspects that the information relates to national security, the defence of Canada or the conduct of international affairs,

(ii) the disclosure is requested for the purpose of enforcing any law of Canada, a province or a foreign jurisdiction, carrying out an investigation relating to the enforcement of any such law or gathering intelligence for the purpose of enforcing any such law, or

(iii) the disclosure is requested for the purpose of administering any law of Canada or a province…

In this case, the RCMP reviewed a passenger manifest from a domestic flight, identified a passenger who had paid by cash shortly before the flight and who only had one piece of luggage and proceeded to search that passenger’s luggage. It found drugs and laid charges.

Trial judge finds Charter breach

In December of last year, Mr. Justice Simon MacDonald of the Nova Scotia Supreme Court held the RCMP breached PIPEDA because it did not make a “request” required by section 7(3)(c.1) given its “cozy” relationship with WestJet:

It might be a fair comment to say the officers had assumed they had permission to look at the manifest from their daily discussions and associations with the staff at Westjet. However, in my mind that is not a satisfactory answer to the problem. There were certain obligations upon the RCMP officers in reviewing the manifest which were legislated under PIPEDA and applied when they went to look at this manifest without a warrant. Mr. Plimmer said Westjet put a protocol on procedures in place for the police to follow in order to see manifests. The police were aware of the procedure they had to follow. I find they didn’t do so in this case, but rather cavalierly walked into Westjet and simply started looking at manifests.

In addition to signaling that the procedural requirements in section 7(3)(c.1) are likely to be read strictly, the trial judgement was notable for its close consideration of WestJet’s privacy policy. The policy said that WestJet might be “required by legal authorities” to disclose personal information without consent, but did not say that WestJet would voluntarily cooperate with law enforcement. MacDonald J. said the policy “seems to emphasize that WestJet would only collect and disclose what is required by law and nothing more.” This weighed in favour of finding the search to be unreasonable and therefore unconstitutional.

MacDonald J. then excluded the evidence based on an application of the Collins test.

Court of Appeal disagrees

The Court of Appeal held that MacDonald J. erred by finding that the RCMP did not have legal authority for the collection of information and by equating a breach of PIPEDA with a breach of the Charter right to be free from unreasonable search and seizure. It then conducted its own contextual expectation of privacy analysis and held that section 8 of the Charter was not engaged in the circumstances. It noted the following in its analysis:

It could not infer a subjective expectation of privacy given the information used by the RCMP was not particularly private – that is, the defendant purchased a ticket from Vancouver to Halifax at the last minute with cash and checked a single bag all in public view.

The place searched was a third-party’s office, not a home or not even a business premises.

Westjet’s privacy policy, with its reference to being “required by authorities” to disclose certain information, was nonetheless a warning to passengers.

Given the exception to the consent rule in section 7(3)(c.1)(ii), PIPEDA does not support an expectation of privacy.

The police tactic was limited, in that the RCMP relied on a drug courier profile and sought only information that fit that profile.

The information collected by the RCMP did not go to the defendant’s “biographical core” of information. The Court said it “amounted to no more than Westjet’s record of Mr. Chehil’s public activities in transacting business with the airline.”

The fact that the passenger record had a space where more sensitive personal information could be entered (e.g. food preferences) did not support an expectation of privacy. The Court said this fact was too theoretical to count.

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